Ronnie Lamar Coulter v State Of Oklahoma

C-2003-399

Filed: Mar. 3, 2004

Not for publication

Prevailing Party: State of Oklahoma

Summary

Ronnie Lamar Coulter appealed his conviction for multiple serious crimes, including First Degree Rape and Indecent Acts with a Child. His conviction and sentence totaled 200 years in prison. The court agreed to reverse part of the decision, specifically Count 12, which charged him with assault with a deadly weapon, since there was not enough evidence to support that charge. Other counts were upheld. Judge Lile dissented.

Decision

The Judgment and Sentence of the trial court is AFFIRMED in PART and REVERSED in PART. The petition for a writ of certiorari is GRANTED with respect to Count 12 and DENIED as to Counts 1 through 11.

Issues

• Was there a failure to ensure the sentencing hearing on a blind plea of guilty was recorded, depriving Petitioner of a complete and accurate record for appeal?
• Did the aggregate sentence of 200 years to serve result from improper argument or submission of improper evidence in aggravation, rendering it excessive?
• Was there an insufficient factual basis to support the conviction on Count 12 for assault with a deadly weapon?

Findings

• the court did not err regarding the failure to record the sentencing hearing
• the evidence was sufficient to support the trial court's sentencing decision
• the factual basis for Count 12 was insufficient, and certiorari was granted for that count

C-2003-399

Mar. 3, 2004

Ronnie Lamar Coulter

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING PETITION FOR WRIT OF CERTIORARI IN PART AND DENYING PETITION FOR WRIT OF CERTIORARI IN PART

STRUBHAR, JUDGE:

Ronnie Lamar Coulter, hereinafter Petitioner, entered a blind plea of guilty in the District Court of Oklahoma County, Case No. CF-2000-3259, to four counts of First Degree Rape (Counts 1, 2, 3 & 7), four counts of Indecent or Lewd Acts with a Child under Sixteen (Counts 4, 5, 8 & 10), one count of First Degree Rape by Instrumentation (Count 6), one count of Forcible Oral Sodomy (Count 9), one count of Exhibiting Obscene Materials to a Minor Child (Count 11) and one count of Assault with a Deadly Weapon (Count 12), each after former conviction of a felony. The Honorable Virgil C. Black, District Judge, accepted Petitioner’s plea and sentenced Petitioner to forty years imprisonment on Counts 1, 2, 3, 6 & 7; twenty years imprisonment on Counts 4, 5, 8, 9, 10 & 12; and ten years imprisonment on Count 11. The trial court ordered Counts 1, 2, 3, 6, 7 & 9 to be served consecutively to each other and to Counts 4, 5, 8, 10, 11 & 12, which were ordered to run concurrently. Petitioner filed a timely application to withdraw his guilty plea. Following the prescribed hearing, the trial court denied Petitioner’s application. From the district court’s order denying his motion to withdraw guilty plea, Petitioner seeks a Writ of Certiorari.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we grant the petition for a writ of certiorari in part and deny the petition in part. In reaching our decision we considered the following propositions of error:

I. Defense counsel’s failure to ensure the sentencing hearing on a blind plea of guilty was recorded has deprived Petitioner of the complete and accurate record that is required to effectively pursue his appeal;

II. The aggregate sentence of 200 years to serve was influenced by passion and prejudice created from improper argument and submission of improper evidence in aggravation and is excessive; and

III. The factual basis is insufficient to support the conviction on Count 12 for assault with a deadly weapon, as defined by Okla. Stat. Tit. 21, § 652 (2001).

As to Proposition I, we find that Petitioner has not shown that he is being denied a meaningful appeal by trial counsel’s failure to have the sentencing hearing reported. See Lozoya v. State, 932 P.2d 22, 31 (Okl.Cr.1996). The record before this Court clearly shows Petitioner entered his plea knowingly and voluntarily. Frederick v. State, 811 P.2d 601, 603 (Okl.Cr.1991). As far as Petitioner’s claim attacking his sentence and trial counsel’s decision to waive the court reporter at the sentencing hearing, he cannot show that he is being denied an adequate appeal process. We have held that the failure to transcribe all proceedings is not fatal. Cannon v. State, 961 P.2d 838, 848 (Okl.Cr. 1998). If alternate means exist for this Court to make a determination without the complete transcription, it will do so and rule accordingly. Id. We find the record before us is adequate to resolve the claims presented and evaluate the legality of the proceedings. Therefore, we cannot find Petitioner has shown that he was prejudiced by defense counsel’s failure to have the sentencing hearing recorded.

As to Proposition II, we find no evidence to support the assertion that the trial court’s sentencing decision was influenced by incompetent evidence. There is a presumption that trial judges in imposing sentence consider only competent and admissible evidence in reaching decisions and disregard any incompetent evidence presented. See Borden v. State, 710 P.2d 116, 118 (1985). Based on this record, we find this claim is without merit.

As to Proposition III, Petitioner claims there was an insufficient factual basis to support Count 12. Count 12 of the Information charged Petitioner with the crime of assault with a deadly weapon and cited 21 O.S.2001, § 652. Section 652(C) imposes liability for the crime of assault and battery with a deadly weapon and requires a battery. No battery was alleged nor admitted as part of the factual basis for Count 12. The problem here is that the crime alleged does not exist. The State concedes this error. Because Petitioner plead guilty to a crime that does not exist, we must grant certiorari on Count 12.

DECISION

The Judgment and Sentence of the trial court is AFFIRMED in PART and REVERSED in PART. The petition for a writ of certiorari is GRANTED with respect to Count 12 and DENIED as to Counts 1 through 11.

APPEARANCES AT TRIAL

MICHAEL D. MCBRIDE
ATTORNEY AT LAW
217 N. HARVEY, STE. 105
OKLAHOMA CITY, OK 73102
ATTORNEY FOR PETITIONER

LEE ANN JONES PETERS
OKLAHOMA INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR PETITIONER

SARAH MCAMIS
ASSISTANT DISTRICT ATTORNEY
320 ROBERT S. KERR, STE. 505
OKLAHOMA CITY, OK 73102
ATTORNEY FOR THE STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

KEELEY L. HARRIS
ASSISTANT ATTORNEY GENERAL
2300 N. LINCOLN BLVD., STE. 112
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR RESPONDENT

OPINION BY: STRUBHAR, J.

JOHNSON, P.J.: CONCUR

LILE, V.P.J.: CONCUR

LUMPKIN, J.: CONCUR

CHAPEL, J.: SPECIALLY CONCUR

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Footnotes:

1. Okla. Stat. tit. 21 § 652 (2001)
2. 21 O.S.2001, § 652

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 652 (2001) - Assault with a Deadly Weapon

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Lozoya v. State, 932 P.2d 22, 31 (Okl.Cr.1996)
• Frederick v. State, 811 P.2d 601, 603 (Okl.Cr.1991)
• Cannon v. State, 961 P.2d 838, 848 (Okl.Cr. 1998)
• Borden v. State, 710 P.2d 116, 118 (1985)